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Sunday, June 13, 2010

Trade and Merchandise Marks Act, 1958 - Trade Marks Act, 1999

Code of Civil Procedure, 1908 Rule 1 & 2
Appeals to challenge order dismissing application for ad-interim injunction restraining respondents from committing acts of infringement in respect of their trade mark "MILKA WONDER CAKE" by using trademark "MILKA" in respect of cakes - Held, As observed by the Apex Court in the judgment reported in 2002 (110) CC 518, 2002 AIR(SC) 275 ( Laxmikant V. Patel v. Chetanbhai Shah, ) . Refusal to grant injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff would not be capable of being undone at a later stage.

We do not wish to comment more about the validity of the appellant's trade mark in the present appeals as it would have a bearing on the same issue, which is stated to be pending before the Intellectual Board in the proceedings initiated by the respondents for rectification.

While considering the question of balance of convenience, the possible confusion that may cause in the mind of an ordinary person of average memory and imperfect recollection along with the possibility of difficulties and loss that may be caused to a party complaining infringement, has to be taken note of. In the case on hand, the product is cake and it will not be possible for an ordinary person to identify a particular product as both the products are found to be more or less identical. Therefore it would definitely cause confusion among the customers. The appellant has stated in so many words about the investment and the amount spent by him for sales promotion. Considering the prima facie evidence produced by the appellant and the balance of convenience, we are convinced that the appellant is entitled for an order of injunction pending disposal of the suit.